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Network Neutrality: Where Things Stand

Modification of photo by John Taylor via Flickr
Modification of photo by John Taylor via Flickr
Sandra Fulton,
ACLU Washington Legislative Office
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May 14, 2014

If there’s one thing public officials have learned from activists over the past few years it’s this: Do Not Anger the Internet. Online organizing has taken down multibillion dollar campaigns such as SOPA and PIPA, brought a national spotlight to injustices in small towns such as Trayvon Martin’s, and helped allow political candidates to raise significant funds in small dollars from large numbers of donors, as was on stark display during the last presidential election.

As the FCC once again picks up the controversial issue of net neutrality, there are signs that the same forces that emerged during the SOPA and PIPA debate are mobilizing again. This time, the Internet community is rallying to protect the very rules that have allowed it to become the powerful voice that it is. Net neutrality rules—also known as open Internet—guarantee that Internet Service Providers (ISPs), such as Comcast or Verizon, will not improperly discriminate among or block lawful content providers. This is the principle that the Internet has always been governed under, ensuring a level playing field for all voices online.

Ironically, the president who benefitted so much from online organizing, and promised during his campaign to “take a backseat to no one” in his commitment to net neutrality, appointed an FCC Chair, Tom Wheeler, who reportedly may be considering abandoning meaningful protections for the much weaker tea of “case-by-case” enforcement. For the first time ever, the FCC is proposing rules that would allow ISPs to charge large content providers more for that “fast lane,” which will hamper free speech online by reducing the number of voices, and raise barriers for access to information. Massive online protests and an encampment at the FCC have sprung up to fight the new proposal.

First, some background.

In January of this year the D.C. Circuit court struck down two key provisions of the FCC’s most recent attempt to protect net neutrality: rules banning ISPs from “discriminating” against or “blocking” lawful content. To be clear, the court did not say the FCC is powerless to implement no discrimination or blocking, but held that the current legal framework under which the rules have been implemented runs counter to black letter law. The court laid out two paths the FCC could take to regulate broadband.

  1. The FCC could reclassify broadband from a Title I “information service” to a Title II “common carrier.” As the D.C. Circuit court explained, common carrier regulations have traditionally applied to industries that serve the public, like transportation and communications industries, and require that the service is available to the public in a non-discriminatory fashion and at a reasonable cost. If the FCC reclassified broadband to Title II, it would have the full authority to put in place anti-discrimination and anti-blocking rules.
  2. The FCC could continue to classify broadband as an information service and regulate it using the limited authority imparted by section 706 of the Telecommunications Act. The intent of this section was originally to encourage the spread of broadband by motivating ISPs to invest in under-served regions by promoting competition, but while 706 may allow for some regulation, it would not allow for strong anti-discrimination or blocking rules. If governed under 706, ISPs would be able to discriminate against competing services and charge large content providers more to deliver their content faster to consumers, leaving those without significant funds in an Internet “slow lane.” Alarmingly, the Chairman selected this option.

What does it mean for our free speech rights?

The Internet is the greatest medium for communication, expression, and organization the world has ever seen. The openness and equality protected by net neutrality rules have allowed the Internet to thrive, becoming a global “free market” of ideas. Among other things, open Internet rules have provided a platform that allows minority voices to be heard in an increasingly mainstream media environment, musicians to be heard without the support of expensive record labels, lesser-known candidates to compete in elections without the support of massive donors, and allows political activists to more effectively mobilize. Without net neutrality protections, these voices could be slowed or buried.

Net neutrality also has serious implications for Americans’ ability to access news and information. In most markets, consumers have very few options for legitimate high-speed broadband service, of the quality and speed we increasingly need to access the most innovative and important content online. If one of those providers starts degrading service or charging for a fast lane, consumers cannot vote with their feet and discipline anti-competitive behavior. And manipulations of online content are not always easily detectable; content could be delayed or distorted in important but subtle ways. This lack of competition gives these high-speed gatekeepers an uncomfortable amount of control over Americans’ access to news and information. They increasingly have the ability to influence the public debate and weaken our democracy through the manipulation of internet traffic.

Fortunately, Internet activists are organizing and their voices are being heard. Just two weeks after the court struck down the rules, the ACLU and a broad coalition of over 85 groups—including Free Press, Reddit, MoveOn, the Sierra Club, and the Council on American-Islamic Relations—delivered a petition with over a million signatures to the FCC calling for reclassification. On May 7, the same day the encampment set up shop at the FCC’s doorstep, the other two Democratic FCC Commissioners (the Commission is split along party lines, two Democratic and two Republican commissioners, with a chairman from the president’s party) issued statements expressing their concern over the chair’s proposed rules. And over the weekend a small web hosting company, NeoCities, slowed traffic to the FCC’s website, showing them what an Internet “slow lane” might feel like.

It’s not only activists who are up in arms over net neutrality; internet content providers are also speaking out. Over 100 companies sent a letter to the FCC saying rules that would allow discrimination represent a “grave threat to the internet.” These companies understand that net neutrality allows small startups to get their products out and compete with established companies. Facebook would have likely never made it out of Mark Zuckerberg’s dorm room if faced with steep fees for distribution. Platforms like Etsy would face daunting challenges.

The FCC and members of Congress are feeling the pressure. The leaders of the Congressional Progressive Caucus, Representatives Raul Grijalva (D-AZ) and Keith Ellison (D-MN), have been collecting signatures on a letter to Chairman Wheeler arguing that classifying communications providers as “common carriers under the law is common sense.”

The Internet has become a vital tool for our democracy. Modern activists no longer rely just on physical protests; they mobilize and spread their message online, and must be able to do so without undue interference from government or the private sector. It is crucial that the FCC move now to protect free speech online and Americans’ access to information or our online marketplace of ideas is going to become a much smaller and less interesting place.

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